Unpublished Disposition, 872 F.2d 426 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 426 (9th Cir. 1989)

James Francis BARNARD, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION; Rob Roberts, Respondents-Appellees.

No. 87-2805.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 11, 1989.Decided April 13, 1989.

Before WILLIAM A. NORRIS, BEEZER and BRUNETTI, Circuit Judges.


MEMORANDUM** 

This is an appeal from the denial of a petition for a writ of habeas corpus. Appellant challenges the action of the United States Parole Commission ("Commission") in setting his presumptive parole date. We affirm.

Appellant was convicted of conspiracy to possess with intent to distribute cocaine and imprisoned. At his Initial Hearing before the Commission, the Commission assigned his offense a severity rating of 8 pursuant to its Guidelines, 28 C.F.R. Secs. 2.1 et seq. The Commission also gave him a "salient factor" rating of 8. Under the Guidelines, these ratings ordinarily would call for a presumptive incarceration period of 100 months before parole. However, because appellant had managed an unusually large drug ring, the Commission extended this incarceration period to 180 months. After exhausting his administrative appeals, appellant petitioned the district court for a writ of habeas corpus. The petition was denied, and this appeal followed.

In Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986), this court held that the Commission's substantive decisions to grant or deny parole have been "committed to agency discretion," and therefore courts lack jurisdiction to review the Commission's decisions "even for abuse of discretion." Id. at 1551. However, we have the power to determine whether the Commission has acted outside the scope of its discretion as specified by Congress. Thus, for example, because Congress has provided that the Commission must take into account certain factors in rendering an individual parole decision, we may review whether the Commission took the appropriate factors into account. Moreover, because Congress has required the Commission to establish Guidelines which shall control parole determinations, we have jurisdiction to consider whether the Commission has followed the Guidelines. Id.

Appellant first contends that the Commission acted beyond the scope of its discretion in assigning a severity rating of 8 to his offense. Specifically, he argues that Commissioner Aranda's mistaken reference to heroin as the drug involved in appellant's offense indicates that Aranda was considering impermissible factors in arriving at his decision. This contention fails. In the first place, Aranda's reference to heroin in his report appears to be simply a clerical error. The record before the Commission, as well as the testimony at the parole hearing, clearly indicated that appellant had been convicted of cocaine distribution; in addition, the Commission's Hearing Summary states that " [t]he panel [including Aranda] is in agreement that the subject was a major cocaine distributor." Excerpts of Record ("ER") Exhibit 5, at 2. Commissioner Aranda's reference to heroin rather than cocaine is most plausibly construed as a clerical error rather than an indication that he misunderstood the facts.

In any event, even if we assume that Aranda erroneously thought that appellant was guilty of a heroin offense, this supposed error made no difference in the severity rating assigned to appellant's offense. The regulations state that a drug offense involving more than 15 kilograms of either heroin or cocaine should be given a severity rating of 8. 28 C.F.R. Sec. 2.20(9) (C) (a) (1988). Both Commissioners on appellant's panel agreed the record indicated that appellant's offense involved more than 15 kilograms. ER Exhibit 2 at 1 (Aranda); Exhibit 3 at 1 (Barnard). Aranda's substitution of heroin for cocaine made no difference in the severity rating given appellant's crime.

Appellant next argues that the Commission violated its regulations by relying on the testimony of a co-conspirator, one Allie, who said that the drug operation involved well over 15 kilos of cocaine. The regulations authorize the Commission to "take into account any substantial information available to it in establishing the prisoner's offense severity rating," but generally forbid it from considering "charges upon which a prisoner was found not guilty." 28 C.F.R. Sec. 2.19(c) (1988). Appellant claims that the Commission's reliance on Allie's testimony violated this regulation, because at trial the jury acquitted appellant of several charges for which Allie was the primary witness against appellant. This argument also fails. Section 2.19 bars the Commission from considering charges on which a prisoner was acquitted; it does not prohibit it from considering the testimony of particular witnesses. The fact that some of Allie's testimony must have been disbelieved by the jury may indicate that he was not a credible witness, but we have no jurisdiction to second-guess the Commission on the credibility of witnesses.

Appellant next claims that the Commission acted outside its discretion in considering the Presentence Investigation Report (PSI) because the PSI did not comply with Fed. R. Crim. P. 32(c) (3) (d). The rule requires that when a defendant asserts the PSI contains factual inaccuracies, the sentencing judge must make findings on the accuracy of the material and must append a record of such findings to the PSI. At sentencing, appellant objected to the PSI's conclusion that he was a ringleader in the drug conspiracy, and to the inclusion of the dollar value of the drugs handled by appellant. It appears from the record that the sentencing judge made oral findings on these objections at sentencing, and appended a transcript to the PSI which was considered by the Commission. See ER Exhibit 5, at 1 (discussing transcript). Even if the transcript did not contain findings on all of appellant's objections, however, it does not follow that the Commission acted outside its discretion in considering the PSI. The Commission is required to consider only such information that is "available and relevant," 18 U.S.C. § 4207. If the PSI was incomplete, the Commission was still acting within its discretion in relying upon it.

Appellant next contends that there was insufficient evidence for the panel to conclude either that over 15 kilos of cocaine were involved or that appellant was a ringleader in the conspiracy. We lack jurisdiction to hear this claim. The record shows that the panel based its conclusion on its consideration of the sentencing record, and applied the preponderance-of-the-evidence standard. See ER Exhibit 5 at 1-2. This is the procedure required by the Guidelines. 28 C.F.R. Sec. 2.19. So long as the Commission has considered the proper materials, we cannot review its assessment of the evidence therein. Wallace, 802 F.2d at 1551.

Finally, appellant argues that the Commission failed to show "good cause" for departing from the Guidelines in deferring parole for 180 months. The statute provides that when the Commission departs from the Guidelines it must have good cause for doing so. 18 U.S.C. § 4206(c). However, the Commission did not depart from the Guidelines in this case. The Guidelines provide that a prisoner falling into appellant's category--severity rating of 8, "salient factor" score of 8--should serve 100 months before parole. The Guidelines state, however, that the Commission may order continued incarceration for more than 100 months, provided that if the Commission orders upwards of 148 months it must explain to the prisoner its reasons for doing so. 28 C.F.R. Sec. 2.20, at 92. In this case, the Commission stated to appellant that it was settling on a period of 180 months because appellant had "played a leadership role in an unusually extensive organized criminal enterprise--a cocaine importation and distribution operation which involved multi-kilogram transactions for over a three year span." ER Exhibit 6, at 1. The Commission therefore complied with the Guidelines, and Sec. 4206(c) is inapplicable.

The judgment is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit Rule 36-3